United States v. Rodrigues

APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District
Judge]

Inga
L. Parsons for appellant.

Kelly
Begg Lawrence, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

Before
Torruella, Selya, and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

A
Massachusetts jury failed to reach a unanimous verdict on a
multiple count indictment charging Martinho Rodrigues with
conspiring with 29 others to distribute assorted drugs in
several Boston area neighborhoods. Rather than face a repeat
trial, Rodrigues opted to plead guilty to Count One,
conspiracy to distribute marijuana in violation of 21 U.S.C.
§ 846, but he preserved his right to appeal the trial
court's denial of his motion to suppress. Before us, he
claims the government, in bad faith, failed to meet the
strict procedural requirements for obtaining wiretaps under
18 U.S.C. § 2517-2522. He also argues that the court
erred in denying him a hearing to explore his
misrepresentation and bad faith concerns. For the following
reasons, we affirm the district court's ruling.

Background

In the
summer of 2011, the Federal Bureau of Investigation
("FBI") and the Boston Police Department
("BPD") initiated an investigation into the
purported drug-trafficking activities of the Woodward Avenue
and Hendry Street gangs in Roxbury and Dorchester,
Massachusetts. During the course of the investigation, the
district court issued four, successive 30-day orders
authorizing the interception of six cell phones known to be
used by Alexis Hidalgo and Jonathan Dasilva -- two gang
members from whom a cooperating witness had conducted several
controlled purchases.

The
first order, on August 8, 2012, authorized the interception
of target telephones #1 and #2 ("TT1" and
"TT2"), which were known to be used by Hidalgo. The
wiretap expired on September 7, 2012 -- thirty days after its
authorization -- and the wiretap application and affidavit in
support of the application were sealed until further order of
the court. On September 5 and 7, the district court granted
the government's motions to seal the resulting recordings
from the wiretap and to postpone inventory
notice[1] to targeted subjects until further order
of the court for all communications intercepted.

The
second order was granted on September 25, 2012. The
government sought and was granted authorization to intercept
target telephones #3 and #4 ("TT3" and
"TT4") -- both known to be used by Hidalgo and
Dasilva in furtherance of the drug-trafficking offenses. Like
the first wiretap, the September 25 wiretap was to expire
thirty days after its authorization on October 25, 2012.
Unlike the first wiretap, however, the government did not
immediately request to seal the resulting recordings or
postpone inventory notice from the second wiretap by the date
of its expiration. Instead, on October 24, 2012 -- a day
before the September 25 wiretap was slated to expire -- the
government submitted a third wiretap application in which it
sought authorization of a new target, telephone #5
("TT5"), as well as the continued interception of
TT3 and TT4 that had initially been granted in the September
25, 2012 order (and slated to end October 25, 2012). The
district court granted the government's request, for
thirty days. On November 27, 2012 -- four days, or two
business days, after the October 24 order expired -- the
district court granted the government's motion to seal
the recordings and postpone inventory notice until further
order of the court for all communications intercepted on TT3,
TT4, and TT5.

On
December 21, 2012 the government submitted its fourth and
final wiretap application. In that application, the
government sought to renew its interceptions of TT3, TT4, and
TT5, and also sought to intercept communications from a final
target telephone #6 ("TT6"). The district court
granted the government's motion. Both the renewals of
TT3, TT4, and TT5 and the initial interception of TT6 were
all set to expire -- again, 30 days after their authorization
-- on January 20, 2013. On January 18, 2013 the court granted
the government's motion to seal the resulting recordings
and postpone inventory notice on communications intercepted
pursuant to the December 21, 2012 order.

As a
result of the government's investigation, Rodrigues,
along with 29 co-defendants, was charged with conspiracy to
distribute cocaine base, cocaine, oxycodone, and marijuana in
violation of 21 U.S.C. § 846. The magistrate judge
subsequently held grouped detention hearings and Rodrigues
proceeded alongside co-defendant Moises Figueroa. During the
two-day hearing held on May 21 and June 10, 2013, BPD
Detective Martin O'Malley testified and submitted an
affidavit in support of the government's detention
motion. O'Malley testified that Rodrigues was a known
associate of Hidalgo and Dasilva from the outset of the
investigation and that Rodrigues had been observed on pole
camera footage at a meeting spot for the Woodward and Hendry
Street gangs. Despite this knowledge, however, Rodrigues was
never listed as a target subject in any of the four wiretap
applications submitted by the government. Yet, in the
December application Rodrigues was mentioned as the
individual who agents believed Dasilva referenced during an
intercepted call. At the close of the hearing, the court
issued an order of detention, remanding Rodrigues into
custody pending trial.

In
pretrial proceedings, Rodrigues filed a motion to suppress
evidence obtained pursuant to the issued wiretaps. In that
motion, Rodrigues raised four arguments, namely, that: (1)
the government deliberately and in bad faith omitted him as a
target subject and as an identifiable person overheard on all
four wiretap applications in violation of 18 U.S.C. §
2518(1)(b)(iv) and 18 U.S.C. § 2518(8)(d); (2) the
government's wiretap applications failed to show
necessity or demonstrate that alternative investigative
techniques would not succeed as required pursuant to 18
U.S.C. § 2518(1)(c); (3) the government failed to
present the tapes for timely sealing pursuant to 18 U.S.C.
§ 2518(8)(a); and (4) that the court should hold a
Franks hearing to explore his allegations of bad
faith. The court denied Rodrigues's motion to suppress
without a hearing.

With
regard to Rodrigues's bad faith claim, the court found
that he failed to make a credible case for his contention
that the government deliberately failed to list him in the
wiretap applications. Specifically, the district court found
that a purposeful violation in a case like this, where there
was a "30-plus defendant criminal conspiracy" and
"there was almost complete compliance with subsection
8(d) [of Title III], " was extremely unlikely. In
denying his motion, the court found that Rodrigues had not
demonstrated any actual "prejudice resulting from the
violation" and that he pointed to no real evidence in
the record to substantiate that the violation was an
intentional one.

With
regard to Rodrigues's claim that the government's
applications failed to meet the Title III necessity
requirement (i.e., that other investigative techniques would
not have succeeded), the district court found that the
"details [of the initial wiretap affidavit were]
extensive and persuasive, and certainly, [as our case law
requires, ] 'minimally adequate' to support the
authorization of a wiretap." The court also found that
the affidavit in support of the government's application
sufficiently stated the unfulfilled goals of the
investigation which necessitated the wiretap and, citing
United States v. Martinez, 452 F.3d 1, 6 (1st Cir.
2006), that those goals were "nearly identical to those
accepted as valid by the First Circuit in the face of an
identical challenge."

With
regard to Rodrigues's claim that the recordings from the
September and October wiretaps were not timely sealed, the
district court found that the October wiretap order was in
fact an extension of the September wiretap order and that
"a two business-day delay [did] not violate 18 U.S.C.
§ 2518(8)(a), particularly where, as here, the
expiration date was the day after Thanksgiving, and the
recordings were kept in a secure location with limited access
and password protection."

With
the district court finding the wiretap evidence admissible,
Rodrigues proceeded to trial on March 2, 2015. However, at
the close of trial, the jury was unable to reach a verdict
and the district court declared a mistrial. After the
mistrial, Rodrigues, as we noted earlier, pled guilty solely
to the marijuana conspiracy, reserving his right to appeal
the denial of his suppression motion. So here we are.

Discussion

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Before
delving into the merits of Rodrigues&#39;s claims, some brief
background on the general setup of the federal wiretap
statute might prove helpful. "Title III provides a
comprehensive scheme for the regulation of electronic
surveillance, prohibiting all secret interception of
communications except as authorized by certain state and
federal judges in response to applications from specified
federal and state law enforcement officials." Dalia
v. United States, 441 U.S. 238, 249 (1979). Indeed,
"Congress enacted Title III of the Omnibus Crime Control
and Safe Streets Act of 1968 with the stated purpose of
&#39;(1) protecting the privacy of wire and oral
communications, and (2) delineating on a uniform basis the
circumstances and conditions under which the interception of
wire and oral communications may be authorized.&#39;"
United States v. Cartagena, 593 F.3d 104, 108 n.1
(1st Cir. 2010) (quoting Gelbard v. United States,
408 U.S. 41, 48 (1972)). And where law enforcement
authorities fail to comply fully with the requirements of
Title III, suppression may be merited if "the
communication was unlawfully intercepted; the order of
authorization or approval" under which it was
intercepted is insufficient on its face; or the interception
was not made in conformity with the order of authorization or
approval. 18 U.S.C. § 2518(10)(a). While suppression may
be merited where a communication is unlawfully intercepted,
...

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